TMI Blog2011 (2) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... volved was the same as “Toyota Landcruiser” - it is up to the assessee to establish that the price declared by it and appearing in the invoice is the transaction value relevant for assessment. - Therefore, remand the disputes to the original authority for a fresh decision. - C/1896/10 - - - Dated:- 11-2-2011 - Hon'ble Mr. M.V. Ravindran, Member(Judicial) Hon'ble Mr. P. Karthikeyan, Member(Technical) Appearance Mr. P.A. Augustian, Advocate for the appellant. Mr. Harish Kumar, SDR for the Revenue. Per P. Karthikeyan Shri Nalapurappatil Abdulla filed this appeal seeking to set aside the Order-in-Appeal No.69/10 dt. 4/8/2010 passed by the Commissioner of Customs (Appeals), Cochin. Vide the impugned order, the Commissioner(Appeals) sustained the order of the original authority. The appellant had imported a Toyota Landcruiser Amazon TD right hand drive car and filed Bill of Entry No.263977 dt. 3/12/2009 at the Customs House, Cochin. The appellant did not have the requisite import licence. The appellant had submitted an invoice bearing No.WD211/2009 issued by M/s. World Wide Motors, Dubai dt. 8/11/2009 for a value of US$ 16,500(CNF). Though the invoice was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 111(d) of the Act and Section 3 of Foreign Trade (Development Regulation) Act. He rendered a finding that the invoice value had been established to be fraudulent. 3. In the appeal, importer has made the following submissions:- a. The assessable value was determined by the lower authorities contrary to the provisions of Section 14(1) of the Act read with CVR. In a very detailed order, the Tribunal in the case of Agarwal Distributors Pvt. Ltd. Vs. CC, New Delhi [2000(177) ELT 49 (Tri.)] had held that value displayed on the internet could not be held as admissible value. The appeal filed by the Department against this order of the Tribunal was dismissed by the Apex Court as reported in 2000(122) ELT A121(SC). It is submitted that an identical car had been imported by one Shri Muhammed Amjed Abdul Sattar and had been cleared through Nhava Sheva Customs under Bill of Entry No.993541 dt. 8/9/2008. The car involved in the instant case had been assessed on the basis of some imaginary value shown as list price. It was admitted that value of used car depends on its condition, mileage and several other factors. A copy of the document based on which value of the car was assessed wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r port and the lowest price accepted for assessment of such cars. 4. During hearing ld. Counsel appearing for the appellant relied on the following judicial authorities:- a. Motor Industries Co. Ltd. Vs. CC [2009(244) ELT 4 (SC)] In this judgment, the Apex Court did not approve rejection of transaction value by the Tribunal without recording special or extraordinary reasons. In para-6 of the said judgment, the Apex Court had observed as follows:- 6. .... .Therefore, the transaction value under Rule 4 must be the price paid or payable on such goods at the time and place of importation in the course of international trade. Section 14 is the deeming provision. It talks of deemed value. The value is deemed to be the price at which such goods are ordinarily sold or offered for sale, for delivery at the time and place of importation in the course of international trade where the seller and the buyer have no interest in the business of each other and the price is the sole consideration for the sale or for offer for sale. Therefore, what has to be seen by the department is the value or cost of the imported goods at the time of importation, i.e., at the time when the goods reaches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2006(202) ELT 13 (SC)], the Apex Court had held that the onus to prove that the declared price did not reflect the transaction value was always on the Department. In CC, Mumbai Vs. Bureau Veritas [2005(181) ELT 3 (SC)] case, it was held that Rule 4 of Customs Valuation Rules, 1988 was limited to the transaction in question. Transaction value was the price actually paid for particular transaction in the ordinary course of commerce. In the Ahammed Kunhi Vs. CC, Chennai [2007(218) ELT 270 (Tri. Chennai)] case, the Tribunal vacated the decision to reject the invoice for the reason that the same was issued by a dealer in UAE for a car manufactured in Germany and contained particulars such as vehicle model number, chasis number etc. finding that the assessing authority had rejected the invoice without giving reasons for such rejection. It is submitted that it was the practice in the Custom House to adopt list price of the car from Red Book for vehicles originating from Japan like the Toyota Landcruiser. The method followed in the subject case was a deviation from the established practice. Relying on the following case laws, it is submitted that the fine and penalty imposed in this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and use of the importer for the prescribed period for it to qualify for import without licence. Therefore, the order of confiscation, fine and penalty are in accordance with law. The judgment of the High Courts relied upon on the penal liability of the importer in such cases are not furnished. As rightly pointed out by the appellant, the fine and penalty will depend on the margin of profit which was apparently not ascertained in this case. Moreover, the profit depends on the value and duties to be paid by the importer at the time of clearance of the vehicle. 7.3. In the case of Davinder Singh Vs. CC(Appeals), Mumba-1 [2006(193) ELT 359 (Tri. Mum.)], the Tribunal reduced the fine and penalty imposed on the importer Shri Davinder Singh from Rs.1,20,000/- and Rs.30,000/- to Rs.25,000/- and Rs.5000/- respectively considering the fact that the importer had run up a demurrage bill of Rs.6.24 lakhs and the vehicle had been imported for his own use. In the D'Souza Lawrence case(supra), the Tribunal reduced the fine and penalty from Rs.3,70,000/- and Rs.1,80,000/- to respectively Rs.1 lakh and Rs.50,000/-. The Tribunal also ordered that the importer had to seek remedy from the appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the appellants were bogus, the Tribunal set aside the orders of the departmental authorities enhancing the assessable value. We find that the subject case is distinguishable on facts from the above cases. 7.5. We find that in the instant case, the importer had produced an invoice which described the impugned car as Toyota Landcruiser whereas the complete description of the car was Toyota Landcruiser Amazon TD . The invoice did not also show the details of the shipper. In these circumstances, the invoice was found to be false and fraudulently prepared. We note that in none of the cases relied on by the importer there was any allegation that the importer had sought to supporty the value declared based on a fraudulent invoice. During the proceedings before the lower authorities, the appellant did not cite any case of Toyota Landcruiser Amazon TD vehicle being accepted as Toyota Landcruiser for the purpose of valuation. Though an instance each of similar import through Cochin and Nhava Sheva port were cited before us, the importer has not satisfactorily rebutted the allegation that the invoice carried wrong description of the imported car. Once the Department sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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